North Dakota Voters Made a Tragic Mistake When They Approved Marsy’s Law


Last year, after an intense campaign funded exclusively by California billionaire Henry Nicholas, North Dakota voters approved a sprawling amendment to the state constitution called Marsy’s Law.

It was billed as a “victim’s rights” bill, but critics (me among them) pointed out that the feel-good legislation would be hugely problematic in practice.

“The North Dakota Constitution should not be a hobby farm for an eccentric California billionaire,” state Supreme Court Justice Dale Sandstrom (since retired) told me last year. “Even for $2½ million dollars he should not be able to get the name of his deceased sister Marsy in the North Dakota Constitution, but under the measure he would,” he continued. “And I’m concerned that a lot of scarce legal resources will be consumed trying to figure out what the measure means and perhaps having to defend it in federal court.”

I have a feeling Sandstrom’s prediction is going to come true. In Bismarck a police officer involved in the shooting of a member of the public is invoking Marsy’s Law as a way to keep his name out of the public. This from the Associated Press:

The officer was attacked after responding to a call at a Bismarck motel on Oct. 15. Police say he was punched in the head and had his eyes gouged before he shot and wounded his attacker.

Chief Dan Donlin tells The Associated Press the officer invoked Marsy’s Law, approved by voters just last year. Donlin says names are typically released after shootings are reviewed by the state — but he’s not sure that will happen now.

Jack MacDonald, an attorney for the North Dakota Newspaper Association, called this invocation of Marsy’s Law a “perversion.” I don’t think that’s accurate. I think this is a practical application of the law.

The problem is the law itself is perverse. Ask yourself this question: If the cop is a victim, how about the guy the cop shot? Is he a victim too? Can his name also be kept from the public? It hasn’t been.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]Ask yourself this question: If the cop is a victim, how about the guy the cop shot? Is he a victim too? Can his name also be kept from the public? It hasn’t been.[/mks_pullquote]

The issue at hand isn’t whether or not this officer was justified in using potentially deadly force against a member of the public. If the accounts of the shooting I’ve read are accurate, the shooting probably was justified.

The problem is that Marsy’s Law, ill-considered policy now ensconced in our state constitution, may make it impossible for the public to learn the identity of a government agent who uses such force against the public.

That’s not a positive development when we, as a nation, are struggling with accountability for law enforcement.

I understand the position these officers are in. Being in the glare of the public spotlight after an incident like this can be harrowing. But cops wield an awesome amount of power over the public, and with that power comes a need for transparency in how its wielded.

That includes knowing who wielded it.

In related news, readers have been sending me this story about the Supreme Court in Montana striking down that state’s iteration of Marsy’s Law in full. That’s not going to be an outcome here in North Dakota beacuse our state, unlike our neighbors to the west, does not have a provision limiting ballot measures to just one issue.

Maybe we should. That could be something the legislative committee reviewing the initiated measure process during the interim should consider.